United States District Court, W.D. Texas, San Antonio Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant United Health Services d/b/a
Meridell Achievement Center's (“Meridell”)
motion for summary judgment, (Dkt. 16), the accompanying
briefing, (Am. Resp., Dkt. 20; Reply, Dkt. 21), and
Meridell's unopposed motion to strike Plaintiff September
Davis's (“Davis”) sur-reply, (Sur-Reply, Dkt.
22; Mot. Strike, Dkt. 23). After considering the parties'
arguments, the record, and the relevant law, the Court grants
Meridell's motion to strike, (Dkt. 23), and
Meridell's motion for summary judgment. (Dkt. 16).
case concerns Davis's claims of unlawful discrimination
and retaliation arising from her termination as a nurse at a
residential adolescent psychiatric facility operated by
Meridell. (Compl., Dkt. 1, at 1-2). Meridell employed Davis
in this capacity for about 23 years. (Id. at 2). The
facility “house[s] male adolescent patients, many of
whom were admitted . . . for presenting high-risk signs such
as suicidal ideation, violent outbursts, or sexually
aggressive behavior.” (Mot. Summ. J., Dkt. 16, at 3).
Davis worked at night and her duties included regularly
surveying patients to ensure their safety
(“rounding”). (See Id. at 3-5, 9). Her
performance evaluations were “mixed, ” though, as
Meridell characterizes it, she “rose through the
ranks.” (Id. at 2).
December 2015, Davis voluntarily resigned her position as
“Night Nurse Coordinator” and “focus[ed] on
working as the core night nurse” in the unit in which
she worked. (Id. at 3, 7-8). Her “duties were
reduced accordingly.” (Id.). Davis says that
“[s]he was only allowed to be scheduled for a 32-hour
work week in order to avoid being able to earn additional
compensation paid for work in excess of 40 hours per week
that was made available to younger workers and same[-]age
male counterparts” (Compl., Dkt. 1, at 2), while
Meridell says that she chose to do so, that it did not reduce
her pay, and that she received bonuses and a raise, (Mot.
Summ. J., Dkt. 16, at 3, 7-8).
is approximately fifty-eight years old, (Compl., Dkt. 1, at
1), and lesbian (Davis Dep. Tr., Dkt. 17-14, at 7)-asserts
that at various points during her employment, she
“complained to management” about what she felt
was “the differential treatment and support”
afforded to younger versus older employees, as well as
“negative treatment of and disdain for patients and
employees whose sexual orientation was different from the
majority.” (Compl., Dkt. 1, at 3). In a deposition, she
explained that during a “town hall”-style meeting
about “cultural sensitivity” with Meridell's
then-CEO, she had said that “as a gay woman, I felt it
was important to also remember to be sensitive to people that
have other sexual orientation[s].” (Davis Dep. Tr.,
Dkt. 17-14, at 7). As Davis recalled the incident, the
then-CEO “didn't really respond to the suggestion
of being gay”; the “look on his face”
indicated to her that he was “taken aback.”
2019, a Meridell manager audited surveillance camera footage
taken during Davis's shifts and did not see her or other
staff performing their rounding duties. (Id. at
3-4). The footage showed Davis at a desk next to her
coworker, who she supervised, and who “had his feet
up.” (Id. at 4). In Meridell's telling,
Davis “appeared to be sleeping, ” (id.
at 4-5); Davis states that she was suffering from a
“sinus headache” and “would, from time to
time[, ] put her head down on the desk . . . to ease the
pain, ” (Compl., Dkt. 1, at 3; see also Am.
Resp., Dkt. 20, at 3). According to Meridell, Davis's
coworker performed his rounds “shoddily, ” and
Davis herself “falsely certif[ied] that the required
rounds were properly recorded and completed. (Mot. Summ. J.,
Dkt. 16, at 4-5). Meridell later deleted the video footage
“in the ordinary course of its business” by
“recording over [it] when recording a subsequent
shift.” (Am. Resp., Dkt. 20, at 3).
12, 2018, Meridell managers called Davis to “discuss
their findings.” (Mot. Summ. J., Dkt. 16, at 5). They
explained what they believed the footage showed. (Compl.,
Dkt. 1, at 3-4; Mot. Summ. J., Dkt. 16, at 5). The parties
explain what happened next differently. As Davis tells it:
Because she had put her head down on the desk, the managers
concluded that [Davis] had been sleeping on the job and
terminated her employment. [Davis] attempted to explain that
she had been ill, suffering from a severe sinus headache, but
was not sleeping. The managers would not listen to her
explanation, but made it clear by their tone of voice that
they had been looking for an excused [sic] to fire her, and
were determined to do so, regardless of the truth.
(Compl., Dkt. 1, at 4). Meanwhile, Meridell says that while
Davis “initially defended herself, ” as the
conversation progressed, she “seemed shocked, ”
“eventually confessed ‘I own it, I own it,
'” and “apologiz[ed] for ‘putting her
patients' safety at risk.'” (Mot. Summ. J.,
Dkt. 16, at 5 (quoting Chaumont Aff., Dkt. 17-1, at 4-5;
Pontious Aff., Dkt. 17-13, at 4)). In a subsequent call,
Meridell “informed [Davis] that [it] had decided to
terminate her employment.” (Id. at 6).
Meridell alleges that “Davis explained that she
believed Meridell's problem with her was her sexuality
‘and the fact that she is open about it.'”
(Id. (quoting Chaumont Aff., Dkt. 17-1, at 5;
Pontious Aff., Dkt. 17-13, at 4)). Meridell's managers
told Davis that she could “file a complaint with
corporate” and that they were “terminating her
for ‘multiple violations of policy, falsification of
records, and her failure to properly supervise the
patients.'” (Id. (quoting Chaumont Aff.,
Dkt. 17-1, at 5)).
filed her complaint in this case on December 17, 2018. (Dkt.
1). She alleges that by terminating her, Meridell unlawfully
discriminated against her because of her age and sexual
orientation and retaliated against her for complaining about
perceived differential treatment because of those
characteristics. (Id. at 4). In doing so, she
argues, Meridell violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623(a),
(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2 (“Title VII”), their corresponding
Texas statutes, Tex. Labor Code §§ 21.051, .055,
and a treatment-facility-specific whistleblower statute,
Texas Health & Safety Code § 161.134. (Compl., Dkt.
1, at 4-5). Meridell timely filed its motion for
summary judgment, (Dkt. 16; see Order, Dkt. 14, at
MERIDELL'S UNOPPOSED MOTION TO STRIKE DAVIS'S
SUR-REPLY, (SUR-REPLY, DKT. 22; MOT. STRIKE, DKT.
the local rules, a party may file a reply in support of a
motion, but “[a]bsent leave of court, no further
submissions on the motion are allowed.” W.D. Tex. Loc.
R. CV-7(f). Sur-replies are “‘highly
disfavored' and permitted only in ‘extraordinary
circumstances,' such as when necessary to respond to new
issues, theories, or arguments raised for the first time in a
reply brief.” Manchester Texas Fin. Grp., LLC v.
Badame, No. A-19-CV-00009-LY, 2019 WL 4228370, at *1 n.1
(W.D. Tex. Sept. 4, 2019) (quoting Luna v. Valdez,
2017 WL 4222695, at *6 (N.D. Tex. Sept. 21, 2017)).
Essentially, “[t]he purpose for having a motion,
response, and reply is to give the movant the final
opportunity to be heard. A sur-reply is appropriate by the
non-movant only when the movant raises new legal theories or
attempts to present new evidence at the reply stage.”
Racetrac Petroleum, Inc. v. J.J.'s Fast Stop,
Inc., No. CIV.A. 3:01-CV-1397, 2003 WL 251318, at *18
(N.D. Tex. Feb. 3, 2003). When the nonmoving party does not
“challeng[e] any alleged newly-presented legal
theories” raised by the movant in its reply, and
“simply wants an opportunity to continue the argument,
” a sur-reply is inappropriate. Id.
argues that Davis's sur-reply, (Dkt. 22), “does not
identify any genuine issue of material fact” and
instead “simply regurgitates [Davis's] assertion
that she was not sleeping on the job.” (Mot. Strike,
Dkt. 23, at 1). Meridell further argues that the sur-reply
does not address the basis for its motion for summary
judgment, which concerns Davis's prima facie cases for
her claims. (Id. at 1-2).
local rules provide that for responsive filings after the
reply, “[a]bsent leave of court, no further submissions
on the motion are allowed.” W.D. Tex. Loc. R. CV-7(f).
They also allow the moving party to indicate, using a
certificate of conference, that “there is no opposition
to any of the relief requested in the motion, ”
id. at (i), and, in an analogous context, that the
Court may grant motions when they are unopposed, id.
at (e)(2). Because Davis did not seek the Court's leave
before filing her sur-reply, and because she is not opposed
to the relief Meridell seeks, the Court grants Meridell's
motion to strike her sur-reply. (Mot. Strike, Dkt. 23).
MERIDELL'S MOTION FOR SUMMARY JUDGMENT, (DKT.
judgment is appropriate under Federal Rule of Civil Procedure
56 only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine only if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986). “A fact issue is ‘material'
if its resolution could affect the outcome of the
action.” Poole v. City of Shreveport, 691 F.3d
624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[T]he moving party may [also]
meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case.”
Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving
party to establish the existence of a genuine issue for
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I.
Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.
1995). Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary judgment
evidence, and thus are insufficient to defeat a motion for
summary judgment. Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Furthermore,
the nonmoving party is required to identify specific evidence
in the record and to articulate the precise way that evidence
supports her claim. Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does
not impose a duty on the court to “sift through the
record in search of evidence” to support the nonmoving
party's opposition to the motion for summary judgment.
Id. After the nonmoving party has been given the
opportunity to raise a genuine factual issue, if no
reasonable juror could find in its favor, summary judgment
will be granted. Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 175 (5th Cir. 2000). The court
must view the summary judgment evidence in the light most
favorable to the nonmoving party. Rosado v. Deters,
5 F.3d 119, 123 (5th Cir. 1993).
Rule of Civil Procedure 56(c)(1) provides that parties
litigating a motion for summary judgment may draw on
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
In general, “[t]he court and the parties have great
flexibility with regard to the evidence that may be used in a
Rule 56 proceeding.” 10A Charles A. Wright, et al.,
Federal Practice and Procedure § 2721 (4th ed.,
Aug. 2019 update). Still, “the evidence proffered by
the [movant] to satisfy his burden of proof must be competent
and admissible at trial.” Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d
547, 549 (5th Cir. 1987)). And “the threshold issue of
admissibility must be resolved before determining whether or
not unresolved questions of fact exist.” United
States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th
Cir. 1977). Similarly, Rule 56(e) permits the nonmoving party
to invoke “any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves,
and it is from this list that one would normally expect the
nonmoving party to make the showing to which we have
referred.” Celotex, 477 U.S. at 324. Though
the Supreme Court in Celotex “gave some
indication that the nonmoving party's Rule 56(e) evidence
might not have to be in strictly admissible form, ” the
Fifth Circuit has held that “Celotex did not
alter the settled law that ‘Rule 56 requires the
adversary to set forth facts that would be admissible in
evidence at trial.'” Duplantis v. Shell
Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991)
(quoting Geiserman v. MacDonald, 893 F.2d 787, 793
(5th Cir. 1990)). Still, it is “not the district
court's duty to examine whether and how [the potentially
inadmissible evidence] might be reduced to acceptable form by
the time of trial.” Id.
evidentiary rules apply to affidavits as well. See,
e.g., United States v. $92, 203.00 in U.S.
Currency, 537 F.3d 504, 508 (5th Cir. 2008); Tucker
v. SAS Inst., Inc., 462 F.Supp.2d 715, 722 (N.D. Tex.
2006); see also 10A Charles A. Wright, et al.,
Federal Practice and Procedure § 2738 (4th ed.,
Aug. 2019 update) (citing Bd. of Pub. Instruction for
Hernando Cty., Fla. v. Meredith, 119 F.2d 712, 713 (5th
Cir. 1941)) (“[E]x parte affidavits, which are not
admissible at trial, are appropriate at a summary-judgment
hearing to the extent they contain admissible information
that could be introduced as evidence at trial.”).